Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00728-PSF-CBS SA'ADAH MAYNARD, Plaintiff, v. HOSPITAL SHARED SERVICES, INC. d/b/a FIRSTWATCH SECURITY SERVICES. Defendant.

AMENDED FINAL PRETRIAL ORDER

COME NOW the Parties, by and through their respective attorneys, and for their Final Pretrial Order state: 1. DATE AND APPEARANCES A Final Pretrial Conference was held on August 22, 2005, at 9:30 a.m. in the United States Courthouse, 901 19th Street, Denver, Colorado 80294. The following counsel appeared in person: Counsel for Plaintiff: Lee T. Judd ANDREW T. BRAKE, P.C. 777 E. Girard Ave., #200 Englewood, Colorado 80110-2767 (303) 806-9000

Counsel for Defendant: Andrew D. Ringel, Esq. HALL & EVANS, LLC 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202-2052 (303) 628-3300

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2. JURISDICTION

Jurisdiction over the Plaintiff's federal claims is invoked pursuant to 42 U.S.C. § 2000e-5, and 28 U.S.C. § 1331 and over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. 3. CLAIMS AND DEFENSES Plaintiff's Claims: This action arose out of the employment relationship between the Plaintiff and the Defendant and the termination thereof. P articularly, Plaintiff is an African-American and black, and was subjected to discriminatory treatment and had previously lodged complaints of discrimination. Subsequently, Plaintiff was suspended from her employment on or about May 26, 2003 and thereafter was not allowed to return to work, resulting in Plaintiff's termination. The basis for the suspension, upon information and belief, was for allegedly violating company policies, practices and/or procedures. No action by Plaintiff constituted grounds for her termination or suspension. Ms. Maynard was informed that two (2) complaints were lodged by employees of the City and County of Denver, clients of Firstwatch, which resulted in the action against her. However, one of the alleged events had occurred approximately one (1) year previously and had been resolved. The second alleged event constituted an individual from the City and County of Denver overhearing Ms. Maynard's comment that if they intended to keep her beyond the end of her scheduled shift, that she would have to be paid overtime, and does not constitute any basis for action against her pursuant to the policies, practices and/or procedures of Firstwatch.

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Ms. Maynard was treated disparately from non-African-American, non-black employees of the Defendant, and was ultimately terminated as a result. Particularly, Mr. Maynard was, upon information and belief, terminated for events which did not constitute a violation of Firstwatch's policies, practices and/or procedures, while Caucasian individuals who have violated company policies and procedures had no action taken against them. Upon information and belief, Plaintiff's termination was motivated by her race and color, including for the reasons outlined hereinabove, as well as in retaliation for the filing of an earlier charge of discrimination by Plaintiff. Further, upon information and belief, Firstwatch has engaged in a pattern or practice of eliminating African-American/black employees, or otherwise treating them adversely. In addition, Plaintiff's termination from her position with the Defendant was in contravention of the policies, practices and/or procedures of the Defendant, and upon which she reasonably and justifiably relied, including relative to discipline/discharge. Plaintiff, at all times, performed her job duties in a competent and efficient manner, and was qualified to perform the functions of the position for which she was hired. As a result of the foregoing conduct, Plaintiff has suffered lost wages, benefits and other perquisites of employment, past, present and future, and has otherwise suffered harm and/or damage, including emotional distress damages, including worry, concern, loss of self-esteem, sleepless nights, humiliation, degradation and has further suffered harm and damage to her career. Accordingly, Plaintiff filed a charge of discrimination/retaliation, and upon receiving a notice of right to sue commenced the instant action asserting claims for discrimination, retaliation, breach of contract and promissory estoppel seeking all damages suffered and as outlined in her Complaint and Jury Demand.
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Defendant's Defenses: Defendant Hospital Shared Services, Inc. d/b/a Firstwatch Security Services denies Plaintiff Sa'Aadah Maynard is entitled to any recovery under any legal theory. Defendant specifically denies any adverse action was taken with respect to the Plaintiff's employment with the Defendant because of her race, in retaliation for her participation in any protected activity, in violation of any contract or enforceable promise between the Plaintiff and the Defendant, or for any improper reason. As defenses and affirmative defenses, Defendant raises the following: (1) Some or all of Plaintiff's claims fail to state a claim upon which relief may be granted against the Defendant; (2) All actions taken by Defendants with respect to Plaintiff's employment were reasonable under the circumstances, taken in the course and scope of her employment, in the good faith performance of the duties of Defendant's employees, for legitimate business reasons, for the purpose of serving the Defendant and in the good faith in the belief that Defendant's employees acted in compliance with applicable laws and regulations, and all such actions were based on legitimate factors, with no action taken in relation to any "protected activity" of the Plaintiff or the Plaintiff's race; (3) Defendant possessed good and sufficient cause for all actions taken in relation to Plaintiff's employment; (4) Some or all of the damages alleged, if any, by Plaintiff were caused by the actions of third parties, including Plaintiff herself, or circumstances over which the Defendant had no right of control or actual control; (5) Upon information and belief, Plaintiff failed to mitigate her damages, if any, as required by law; (6) Defendant would have taken the same actions with respect to Plaintiff's employment in the absence of Plaintiff's race and any alleged "protected activity" of the Plaintiff; (7) On information and belief, Plaintiff may have failed to exhaust administrative remedies with respect to some or all of her claims or allegations; (8) Plaintiff's claims
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for non-economic damages under Colorado law are subject to the limitations set out in C.R.S. § 13-21102; (9) This Court should decline to exercise supplemental jurisdiction over any state law claim; (10) Plaintiff's claims for punitive damages, if any, are barred, reduced, or in the alternative, unconstitutional and violate Defendant's right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article II, Section 25 of the Colorado Constitution; (11) Defendant never breached any duty owed Plaintiff at any time in the course of her employment with Defendant; (12) Plaintiff's damages, if any, are subject to offset by virtue of amounts received from other sources; (13) Plaintiff's promissory estoppel claim cannot duplicate her breach of contract action; (14) Plaintiff is not entitled to a jury trial on the equitable claim of promissory estoppel; (15) Any actions taken by Defendant in relation to Plaintiff were taken for legitimate non-discriminatory business reasons; (16) At all times pertinent herein, Defendant acted in accordance with all common law, statutory, constitutional and contractual obligations and without any intent to cause Plaintiff harm; and (17) Plaintiff is not entitled to attorneys fees under any theory arising under Colorado law. 4. STIPULATIONS The parties have stipulated to the following facts: 1. 2. 3. Plaintiff is an African-American. Plaintiff was employed by the Defendant. Defendant is a corporation which is authorized to conduct business in the State of Colorado

and is conducting business in the State of Colorado. 4. Venue is proper.
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5. PENDING MOTIONS Defendant's Motion for Summary Judgment, filed April 14, 2005, is pending. Plaintiff filed her response on or about May 18, 2005 and Defendant filed its reply on or about June 10, 2005. As such, the Motion if fully briefed and awaits a determination by this Court 6. WITNESSES A List the nonexpert witnesses to be called by each party. Plaintiff's non-expert witnesses who will be present at trial: a. See Exhibit A attached hereto

Defendant's non-expert witnesses who will be present at trial: a. See Exhibit B attached hereto.

Plaintiff's non-expert witnesses who may be present at trial: a. See Exhibit A attached hereto.

Defendant's non-expert witnesses who may be present at trial: a. See Exhibit B attached hereto.

Plaintiff's witnesses where testimony is expected to be presented by means of a deposition: a. None. Defendant's witnesses whose testimony is expected to be presented by means of a deposition: a. B. None.

List the expert witnesses to be called by each party. List separately: Witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

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Plaintiff's expert witnesses who will be present at trial: a. None

Defendant's expert witnesses who will be present at trial: a. None.

Witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and Plaintiff's expert witnesses who may be present at trial: a. None.

Defendant's expert witnesses who may be present at trial: a None.

Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B).

Plaintiff's expert witnesses where testimony is expected to be presented by means of a deposition: a. None.

Defendant's expert witnesses where testimony is expected to be presented by means of a deposition: a. None. 7. EXHIBITS a. List the exhibits to be offered by each party and identify those to be stipulated into

evidence. This list should be specific enough so that other parties and the court can understand, merely by

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referring to the list, each separate exhibit which will be offered. General references such as "all deposition exhibits" or "all documents produced during discovery" are unacceptable. Plaintiff: See attached Exhibit C - Plaintiff's Exhibit List Defendant: See attached Exhibit D ­ Defendant's Exhibit List b. Copies of listed exhibits must be provided to opposing counsel and any pro se party no

later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES None 10. SETTLEMENT Counsel for the parties certify the following: a. b. representative. c. Settlement offers were communicated upon being made.
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A settlement conference occurred in this case on or about February 7, 2005. The participants in the settlement conference included counsel and the parties or a party

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d.

Counsel for the parties do intend to hold future settlement conferences upon the Court's

determination of the pending Motion for Summary Judgment. e. f. g. It appears from the discussion by all counsel that there is little possibility of settlement. No further settlement conferences have been scheduled. Counsel for the parties have considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

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12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. Provided, however, that the Final Pretrial Order may be amended, modified, or supplemented by the Trial Preparation Conference Order or any order entered during the trial preparation conference, which subsequent orders are anticipated and incorporated by such reference. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS A. B. C. DATED this The trial is to a jury. The estimated length of trial is five (5) trial days. Trial will occur at the United States District Courthouse in Denver, Colorado. day of August 2005. BY THE COURT:

______________________________ The Honorable Craig B. Shaffer United States Magistrate Judge

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FINAL PRETRIAL ORDER TENDERED FOR REVIEW:

ANDREW T. BRAKE, P. C.

By s/ Lee T. Judd_______________ Lee T. Judd, Esq. Attorneys for the Plaintiff 777 E. Girard Ave., Suite 200 Englewood, Colorado 80110-2767 Telephone: (303) 806-9000 HALL & EVANS, LLC

By s/ Andrew D. Ringel___________ Andrew D. Ringel Attorneys for the Defendant 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202-2052 Telephone: (303) 628-3300

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 16th day of August 2005, I electronically filed the foregoing AMENDED FINAL PRETRIAL ORDER with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Lee Judd, Esq. Andrew T. Brake, P.C. 777 E. Girard Ave. Suite 200 Englewood, CO 80110-2767 [email protected] and hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's named: None s/Loree Trout, Secretary to Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] Attorneys for Defendant

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